This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Thursday, August 18, 2011

Distinguishing vice regal functions from administrative matters

Freedom of Information Commissioner Popple in 'B' and Office of the Official Secretary to the Governor General [2011] AICmr 6 upheld a decision to refuse access to documents concerning appointments to the Order of Australia. The Commissioner confirmed the Office is subject to the Freedom of Information Act as a body established for a public purpose by
an enactment and, therefore, a ‘prescribed authority' as defined in s
4. However, s 6A of the act excludes a right of access unless the document sought
relates to " matters of an administrative nature." Commissioner Popple decided the documents in question related to the Governor-General's discharge of
a core function, namely the vice-regal honours function. In the absence of precedent, he drew on Australian Information Commissioner Guidelines in finding documents of this kind were not documents relating to matters of an administrative nature.

It's an interesting issue, one that I looked at in March last year. The precedents that do exist involve consideration of the words in the context of the operation of courts and tribunals. One take is "it is necessary not to take too strict a view of what is
necessary to be kept confidential in the interests of preserving the
independence of the judicial and administrative decision-making
functions." With this in mind the exclusion might apply more readily to documents relating to the processing of individual nominations than to other documents sought in this case, such as manuals and guidelines relating to the administration of the
Australian honours system, and documents relating to review processes.

Vice regal offices in Australia are outside the scope
of FOI type legislation except for the Commonwealth, as above, and in similar terms, Tasmania.

The relevant section provides

6A Official Secretary to the Governor-General

(1) This Act does not apply to any request for access to a document
of the Official Secretary to the Governor-General unless the document
relates to matters of an administrative nature.
(2) For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor-General Act 1974
that is in his or her possession by reason of his or her employment
under that section shall be taken to be in the possession of the
Official Secretary to the Governor-General.

The applicant sought access to a copy of nominations as she had submitted them, a list of
documents presented to the Council for the Order of Australia for the
purpose of assessing those nominations, and related correspondence.
She also requested copies of ‘[w]orking manuals, policy guidelines and
criteria related to the administration of awards within the Order of
Australia', and ‘[d]ocuments relating to review processes i.e. right
of appeal in cases of maladministration'. The office indicated that a list did not exist of documents presented to the
Council for the Order of Australia, and refused that part of the
request under s 24A of the FOI Act. It refused the entire request
on the basis that the documents sought do not relate to ‘matters of an
administrative nature'.

Commissioner Popple [9] said

the status of the Office under the FOI Act is analogous to that of
courts and certain tribunals. Under s 5 (for courts) and s 6 (for
certain tribunals), the FOI Act does not apply to any request for
access to a document of a court/tribunal unless the document relates
to matters of an administrative nature.

A Federal court decision (Bienstein v Family Court of Australia (2008) 170 FCR 382; [2008] FCA 1138) regarding these words in the context of the courts determined that the purpose was to protect judicial independence from the executive arm of government. While not directly relevant to s 6A, Commissioner Popple said the
test in Bienstein could be applied, by analogy, to the
vice-regal function. This required looking "at a vice-regal function to determine whether it is a
function that is to be exercised independently of the regular
administration of the office." He drew on this reference in Australian Information Commissioner Guidelines:

The FOI Act provides in similar terms that it only applies to the
Official Secretary to the Governor-General in respect of requests for
access to documents that relate to ‘matters of an administrative
nature' (s 6A). Implicitly, the Act does not apply to requests for
access to documents that relate to the Governor-General's discharge of
official functions conferred by the Constitution or an enactment.[9]

The commissioner continued:

17. ... the documents that the applicant has sought that contain
detail about specific nominations and how those nominations were
processed do not, in my view, relate to matters of an administrative
nature for the purposes of s 6A. They relate to a core vice-regal
function: deciding whether or not to appoint an individual to the
Order of Australia.

18. This is also true of the other documents that the applicant
sought: manuals and guidelines relating to the administration of the
Australian honours system, and documents relating to review processes.
These documents, like the ones relating specifically to the
applicant's nominations, relate to the Governor-General's discharge of
a core function, namely the vice-regal honours function. As explained
in the Guidelines, the FOI Act implicitly does not apply to requests
for access to such documents. These documents do not relate to matters of an administrative nature within the meaning of s 6A of the FOI Act.

For what it is worth, here is what I came up with in doing some research on this issue in March last year.

The section has not been subject to judicial interpretation, although the
same term is used in sections 5 and 6 regarding documents held by courts
and tribunals and has been the subject of several decisions that focus
on the meaning in the context of the independence of such bodies. What s
6A means is another matter, but similar issues may arise particularly
regarding documents that relate to a particular nomination for an Order
of Australia award.The Official Secretary of course also has available
all the exemptions in the FOI act.
In Bienstein v Family Court of Australia [2008] FCA 1138
Justice Gray [at 46] quoted the Hansard from 1981 when the act was
amended in response to a committee recommendation to include sections 5
and 6:

The kind of matters that the Committee had in mind as
justifying the operation of the Bill were questions relating to the
number of sitting days, the number of cases determined, the number of
cases withdrawn, the number of cases which were subsequently appealed,
criminal cases in which bail was awarded and so on.... The Senate
Committee does not see this as interfering or trespassing in any way
with the independence of these bodies which, as a part of our
constitutional system, it is important to preserve. It is a distinction
which is familiar and understood and the language in which the
amendment is cast is sufficiently clear and precise, in our view, to be
accommodated directly by the Government

Justice Gray went on to note [54]

The wording is identical to that used in s 5, but s 6 relates to institutions that are not judicial, in the sense that they are not created under Ch III of the Constitution
and are therefore emanations of the Executive arm of government,
required to be entirely separate from the judicial arm. Having said
this, the independence of those institutions from interference by the
Executive arm of government is also important. The then
Attorney-General recognised this in the course of the Senate debate.
Having regard to the nature of both courts and the institutions to
which s 6
applies, and to the importance of judicial independence, and the
independence of the other institutions, recognised on both sides of the
Senate debate about the amendment, it can be taken that both s 5 and s 6 are intended not to extend as far as requiring the giving of access to documents that would put that independence at risk."

Justice
Gray declined to follow Western Australian decisions based on the
dictionary definition of the word "administrative", meaning "concerning
or relating to the management of affairs," where the words were
confined to documents relating to the management of the affairs of a
court or tribunal, excluding documents "created in the course of and for
the purpose of particular matters dealt with by the agency in the
exercise of its adjudicative functions." (Although not cited this decision of
Chief Justice Martin in the Western Australian Supreme Court outlines
the narrower WA interpretation.) Justice Gray [77] said this approach "would constrain unduly the operation of the phrase "relates to matters
of an administrative nature." It should not be followed in relation to
s 5 of the FOI Act." Leading to this conclusion[78]:

..clearly.. s 5 of the FOI Act
should be interpreted so that access to documents relating to the
exercise of the judicial functions of courts, and to the
decision-making functions of tribunals, are not excluded from the right
of access merely for that reason. What emerges from the context of s 5,
as well as from the extrinsic materials, is a concern that documents
the revelation of which would impinge upon the independence essential
to the exercise of the judicial function, or the decision-making
process, should not be made available. It follows that, while the words
"relates to matters of an administrative nature" in s 5 (and also in s 6)
should be interpreted as including documents that bear upon the
exercise of the judicial, or decision-making, functions, only those
documents the availability of which would not impinge upon the necessary
independence should be regarded as documents relating to matters of an
administrative nature. The test will not necessarily be easy to apply.
Its application will depend upon the terms of the request for a
document, and may require an examination of the circumstances in which
the document was produced and is retained. In the application of the
test, however, it is necessary not to take too strict a view of what is
necessary to be kept confidential in the interests of preserving the
independence of the judicial and administrative decision-making
functions.

2 comments:

Dr Popple's reasoning is very similar to the reasoning in HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 which arose under the NSW Privacy law, in relation to a provision that differentiated between categories of administrative functions. The decision has been applied in subsequent decisions of the Tribunal. It is to be contrasted with the the Tribunal's conclusion in another case which related to a provision of the NSW FOI Act. The FOI Act provision referred generically to an agency's 'administrative functions'. In that case the Tribunal took a broader view, similar to the one pressed by the applicant before Dr Popple, see N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (upheld on referral of question of law by the Supreme Court in Commissioner of Police New South Wales v "N" [2003] NSWSC 943 ).

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Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.